SATYENDRA KUMAR v. M. V. RAMACHANDRA MURTHY — 1974 DIGILAW 226 (KAR)

( 1 ) THESE three revision petitions under S. 50 of the Karnataka Rent control Act, 1961 (hereinafter referred to, as the 'act'), raise, a common question, as to the starting point of the period of limitation for arrears of rent which a tenant is required to pay or deposit under S. 29 of the Act. The question is whether such starting point is: (i) the date on which the petition under Sec,21 (1) of the Act is presented; (ii) the date on which the landlord makes an application for defter- mining under S. 29 (3) the arrears of rent or for taking action under S. 29 of the Act; (iii) the date on which the. tenant dqposits the arrears of rent or (iv) the date on which the Court makes an order determining the arrears of rent and directing the tenant to deposit such arrears within a specified time. ( 2 ) IN HRC. No. 267 of 1971 (out of which CRP. No. 1412 of 1973 arises), the landlord made an application moving the Court to take action under s. 29 (4) of the Act. The learned Munsiff, by his order dt. 17-4-1073, directed the tenant to pay or deposit the arrears of rent for the period commencing from a date three years next before the date on which the petition under S. 21 (1) off the Act, was presented. The contention of the petitioner tenant in his revision petition is that the arrears of rent directed to be, paid or deposited, should have been limited to the period of three years next before the date of his order i. e. 17-4-1963. ( 3 ) IN HRCA. 127 of 1971 out of which CRP. 2355 of 1973 arises, the learned Dist Judge, by his order dt. 13-9-1973, directed the tenant to pay or deposit the arrears of rent for the period commencing from the date on which the petition under S. 21 (1) of the Act was presented, i. e. , 15-9-1966. The contention of the petitioner-tenant in his revision petition, is that the arrears of rent directied by the learned Dist Judge to be paid or deposited, should have been restricted to the period of thrce years next before the date of his order, i. e. , 13-9-1973. ( 4 ) IN HRC. 41 of 1969 out of which CRP. The contention of the petitioner-tenant in his revision petition, is that the arrears of rent directied by the learned Dist Judge to be paid or deposited, should have been restricted to the period of thrce years next before the date of his order, i. e. , 13-9-1973. ( 4 ) IN HRC. 41 of 1969 out of which CRP. 2816 of 1973 arises, the learned munsiff, by his order dt. 24-9-1973, directed the tenant to pay or deposit the arrears of rent for the period from 18-8-1966 to 18-9-1973. The contention of the petitioner-tenant in his revision petition is that tha arrears oi rent directed by the learned Munsiff to be paid or deposited, should have been restricted to the period of three years next before the date of has order i e. 24-4-1973 or at any rate next before the date of the landlord's application (i. e. 2-3-1973) moving the Court to take action under Section 29 (4) of the Act. ( 5 ) SUB-SEC (1) of Section 29 of the Act reads : " 29 (1) Deposit and payment of rent during the pendency of proceedings for eviction.- (1) No tenant against whom an application for eviction has been made by a landlord under 9. 21, shall be entitled to contest the application before the Court under that section or to prefer or prosecute an appeal or revision petition u/s. 48 or S. 50 against any order made by the Court on an applicaton under S. 21 or an order passed by the Dist Judge on appeal, as the case may be, unless he has paid or pays to the landlord or deposits with the Court or the Dist judge or the High Cour, as the case may be, "all arrears of rent due" in respect of the premises up to the date of payment or deposits and continues to pay or deposit any rent which may subsequently become due in respect of the premises at the rate at which it was last paid or agreed to be paid, until the determination of the proceedings before the Court or the Dist Judge or the High Court, as the case may be". ( 6 ) THE expression 'rent due' occurring in S. 29 (1) of the Act, came up for consideration in 'virupaxayya Rudrayya Allimathi v. Anusuyabai, 1967 1 Myslj. 231. After referring to the scheme of Ss. ( 6 ) THE expression 'rent due' occurring in S. 29 (1) of the Act, came up for consideration in 'virupaxayya Rudrayya Allimathi v. Anusuyabai, 1967 1 Myslj. 231. After referring to the scheme of Ss. 21 and 29 of the Act, Ahmed All Khan, j. , said thus at pages 233 and 234:" It is evident that the objfect of provision of S. 29 is to secure prompt payment of rent by the tenant to the landlord during the pendency of proceedings for eviction under the Act and to discountenance any attempt on the) part of the tenant from stopping the payment, A tenant who wants to avail the benefit of the Mysore Act is placed under an obligation to the prompt payment of rent and it is, therefore a penal provision. That being so the words 'rent due' used in sub-sec (1)of 5. 29 must be construed strictly unless the statute makes an express provision directing the tenant to pay even timebarred rent and no liability can be imposed on the tenant to pay arrears of rent which has become time-barred. Further if it is to be construed that the words 'rent due' include time-barred rent as well, it would load to an incongruous situation. As already observed the object of the provision of S. 29 is to secure prompt payment of rent by the tenant to the landlord during the pendency of the proceeding for eviction under the Mysore Act. It is clear that the disability is imposed by sub-sec (1) of S. 29 of the Act from contesting any proceeding without making deposit as laid down therein on a tenant against whom an obligation has been cast under 9. 29. ( 7 ) NOW S. 21 of the Act provides that an order for eviction will be made if the tenant has not paid rent 'legally recoverable'. Then again in sub-sec (2) (b) of that section relief against forfeiture of tenancy is provided for the tenant who pays arrears of rent 'legally recoverable'. In the main proceeding, therefore, rent which the landlord would be entitled to is the rent which is legally recoverable. In other words he is not entitled to rent which is legally not recoverable or time-barred. In the main proceeding, therefore, rent which the landlord would be entitled to is the rent which is legally recoverable. In other words he is not entitled to rent which is legally not recoverable or time-barred. If it is construed that the words 'rent due' in sub-sec (1) of Sec. 29 include time barred rent also, the resultant position would be that the benefit conferred upon the landlord in the pending proceeding, viz. , under S. 29, would be even more than what he would be entitled to under his main application for eviction, i. e. , under Sec. 21, Thus having regard to the scheme of the mysore Act, the words, 'arrears of rent due' occurring in sub-sec (1) of s. 29 should be construed with due regard to the place and the context in which they are found. If so construed it means rent legally due and recoverable by action and does not include rent which is barred by the law of limitation. ( 8 ) IN the above decision, though it has been laid down that the expresion 'arrears of rent due' occurring in sub-sec (1) of S. 29 of the Act, should be construed as rent legally due and recoverable by action, the starting point of the period of limitation for such arrears of rent, has not been stated. The question as to what is starting point of such period ol limitation, arises for determination in these petitions. ( 9 ) IT is evident that under cl (b) of S 21 (2) of the Act the landlord is entitled to recover rent due for a period of three years next before the date of the petition under S. 21 (1) of the Act. As the object of the provision of S 29 of the Act is to secure prompt payment of rent by the tenant during the pendency of proceedings for eviction under the Act (whether in the trial Court or in appeal or revision) it stands to reason that the very same arrears of rent which are legally due for the purpose of S 21, (2) (b) of the Act. should be regarded as also the arrears of rent due for the purpose of Section 29 of the Act. should be regarded as also the arrears of rent due for the purpose of Section 29 of the Act. ( 10 ) SUB-SEC (3) of S. 29 of the Act contemplates an application by the landlord or by the tenant for determination of the arrears of rent due, only where there is any dispute as to the amount of such arrears. If there is no such dispute, then no application need be made under that sub-section either by the landlord or the tenant. The obligation on the tenant under s. 29 (1) to pay or deposit the arrears of rent and to pay rent which may subsequently become due, arises whether or not there is any dispute as to the amount of arrears of rent. Hence the date on which an application under S 29 (3) of the Act is made by the landlord, cannot be the starting point of limitation for arrears of rent. Sub-sec (1) of S. 29 of the Act does not require the landlord to make any application to move the Court either to direct the tenant to deposit the arrears of rent or to take action against him under sub-sec (4) of that section (for failure to pay or deposit arrears of rent and rent which may subsequently become due)though as a matter of practice landlords, file such applications to move the Court to take such action. When there is no requirement under law that the landlord should make an application to move the Court to take action under S. 29 (4), the date of making such application, cannot be regarded as the starting point of the period of limitation for arrears of rent. ( 11 ) IF the date on which the tenant pays or deposits arrears of rent, is regarded as the starting point of the period of limitation for the arrears of rent due, the tenant who delays paying or depositing the arrears of rent will be benefited by his own delay in paying or depositing such arrears. Hence, it would be manifestly unreasonable to regard the date of his paying or depositing the arrears of rent as the starting point of the period of limitation for arrears of rent. Hence, it would be manifestly unreasonable to regard the date of his paying or depositing the arrears of rent as the starting point of the period of limitation for arrears of rent. ( 12 ) THE need for an order of the Court determining the arrears of rent, will arise only when there is a dispute between the landlord and the tenant as to such arrears. If there is no such dispute, there is no requirement under law that the Court should determine the arrears of rent and fix a date for payment of such arrears by the tenant before taking action under S. 29 (4) of the Act, though as a matter of practice, the Court passes a preliminary order determining the arrears of rent and directing the tenant to pay such arrears within a specified date. Moreover the date on which the Court makes such order, depends upon the many accidental circumstances and vagaries of the course, of litigation like the volume of pendency ot cases in the Court. In one case such an order may be made within a month or two after the petition for eviction is filed, while in another case such an order may be made two or three years after the petition for eviction is filed. Delay on the part of the Court in making such order, should not reduce the extent of arrears of rent which the tenant is required to pay or deposit under S. 29 (1) of the act. Hence, the date on which the Court makes an order determining the arrears of rent and fixing the time limit within which such arrears should be paid, cannot reasonably be regarded as the starting point of the period of limitation for the arrears of rent due. ( 13 ) HENCE, the date on which the petition under S. 21 (1) of the Act is presented, should in my opinion, be regarded as the starting point of the period of limitation for the purpose of determining the arrears of rent due and required to be paid or deposited by the tenant under S. 29 (1) of the Act. In each of CRPa. In each of CRPa. 1412 and 2816 of 1973, the respective tenant has been directed to pay or deposit the arrears of rent for the period commencing from the date three years next before the da,te on which the petition under s. 21 (1) of the Act was presented. I do not see any good grounds to interfere with the impugned orders in these two, petitions. ( 14 ) IN CRP. 2355 of 1973, the, learned Dist Judge has directed the tenant to pay or deposit the arrears of rent for the period commencing from the. date of the petition under S. 21 (1) of the Act. If anybody should have been aggrieved by that order , it was the landlord and not the tenant. . However, the landlord has not chosen to come up in revision against that order. So, i do not see, any merit in the tenant's revision petition against that order. However, in CRP. 2816 of 1973, Mr. P. Ganapathy Bhat, learned counsel for the petitioner-tenant, raised two additional contentions. Firstly, he contended that in the petition for eviction, the landlord himself had stated that he did not claim therein the arrears of rent due from the tenant, that he (the landlord) reserved his right to claim such arrears in a separate suit and that consequently no order could be made under S. 29, (1) of the Act, directing the tenant to pay or deposit the arrears of rent. The obligation of the tenant under S. 29 (1) of the Act to pay or deposit the arrears of rent and to continue to pay or deposit rent subsequently becoming due during the pendency of the proceedings in the trial Court or in appeal or revision, is not dependent on the landlord claiming or not claiming such arrears of rent in the petition under S. 21 (1) of the Act. Hence, I am unable to accept the contention of Mr. Ganapathy Bhat that merely because the landlord who sought for (eviction on the ground specified under Cls (h) and (i) of S. 21 (1) of the Act, did not claim the arrears of rent in his petition under S. 21 (1) of the Act, the Court should not have directed the tenant to pay or deposit the arrears of rent. ( 15 ) IT was next contended by Mr. ( 15 ) IT was next contended by Mr. Ganapathy Bhat that since a portion of the demised premises had been eompulsorily acquired, the rent payable for the remaining portion thereof which continues to be in the occupation of the tenant, should have been determined in appropriate proceedings and thai until such determination was made, tenant could not be required to pay or deposit the arrears of rent. ( 16 ) BEFORE the learned Munsiff, the landlord pleaded that the rent for the portion of the demised premises in occupation oi the tenant (after the other portion was acquired) should be taken as Rs. 60 p. m. ; but the tenant pleaded that such rent should not exceed Rs. 30 p. m. For the purpose of the order under S. 29 of the. Act, the learned Munsiff has proceeded on the basis that the rent payable by the tenant wa only Rs. 30 p. m. The tenant can obviously have no legitimate grievance when the learned Munsiff had adopted the rate of rent which he (the tenant) himself considered to bo reasonable. Hence, the second contention urged by Mr. Ganapathy bhat should also fail. ( 17 ) IN the result, these three petitions fail and are dismissed. However, in each oi these petitions, the petitioner-tenant is granted two months' time, from today to pay or deposit the arrears of rent, if any. In the circumstances of these petitions, the parties are directed to bear their own costs. --- *** --- .